LEGAL AUTHORITY ISSUES FOR MUNICIPALITIES WHEN RECONCILING QUALITY OF LIFE AND DEVELOPMENT RECONCILING QUALITY OF LIFE AND DEVELOPMENT CONFERENCE WIDENER UNIVERSITY COMMONWEALTH LAW SCHOOL APRIL 26, 2016

Panelists Charles M. Courtney, Esquire John C. Dernbach, Esquire Chair of Land Use Division of McNees, Wallace & Nurick LLC’s Real Estate Group Represents businesses on a variety of zoning, land development, planning, transportation and other land use matters Certified Instructor for the Pennsylvania Municipal Planning Education Institute John C. Dernbach, Esquire Distinguished Professor of Law at Widener University Commonwealth Law School Director of Widener’s Environmental Law and Sustainability Center Susan J. Smith, Esquire Represents private and municipal clients in land use, municipal, environmental and public utility matters through The Law Office of Susan J. Smith in Camp Hill Presenter and member of Planning Committee for Pennsylvania Bar Institute’s Land Use Institute

Agenda Sustainability-Related Zoning Provisions Subjective vs. Objective Challenges with Burden of Proof Discussion re: Specific Types of Uses Residential – large scale developments, etc. Agricultural – CAFOs Commercial – Warehousing Industrial Other impacts – signs, lighting, etc. Environmental Rights Amendment Impact of Robinson Tp. v. Commonwealth on municipal obligations re: sustainability

Subjective v. Objective Key element in evaluating decisions by municipal governing bodies (conditional uses) and zoning hearing boards (special exceptions) Objective standard – more easily upheld Subjective standard – requirement may not be enforceable or applicant may not have burden of proving that it meets the standard              

Subjective vs. Objective - Examples “Any construction within any [Environmental Protection Overlay District] shall be minimally invasive and use best management practices, as defined by [the Department of Environmental Protection] and [the Army Corps of Engineers].” Subjective vs. Objective Are standards specific enough? What are benchmarks for “minimally invasive”? Williams Holding Group, LLC v. Board of Sup’rs of W. Hanover Tp., 101 A.3d 1202 (Pa.Cmwlth. 2014)

Subjective vs. Objective - Examples “Naturalized stormwater basins. The entire basin shall be located a minimum of 50 feet from the defined edge of the identified watercourse.” In re Thompson, 896 A.2d 659 (Pa.Cmwlth. 2006)

Subjective vs. Objective - Examples “(e) That the development will not create detrimental health and safety impacts, including but not limited to potential impacts of noise, emissions, or vibrations from the proposed development, or functions within the proposed site which would otherwise affect the health or safety of others as a direct result of the operation of the proposed use; (f) That the development will not create detrimental impacts on the future and potential development of parcels in the vicinity of the proposed site of the development; and (g) That the development will not create detrimental impacts on property values” Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa.Cmwlth. 2010), appeal denied, 612 Pa. 694, 29 A.3d 799 (2011)

Impacts of Different Uses on Sustainable Communities Large Scale Residential Developments Concentrated Animal Feeding Operations (CAFOs) Warehousing Projects Natural Gas and Pipelines Others Signs – 2015 U.S. Supreme Court decision in Reed v. Town of Gilbert

Contact Information Charles M. Courtney ccourtney@mwn.com 717-232-8000 John C. Dernbach 717-541-1933 jcdernbach@widener.edu Susan J. Smith 717-763-1650 ssmith@sjsmithlaw.com